Meeting of the Parliament (Hybrid)

Meeting date: Thursday, February 10, 2022

Official Report 1121KB pdf

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Professional Qualifications Bill

The next item of business is a debate on motion S6M-03124, in the name of Ivan McKee, on the Professional Qualifications Bill, which is United Kingdom legislation. I invite members who wish to participate in the debate to press their request-to-speak button as soon as possible.

14:28  

The United Kingdom Government announced its Professional Qualifications Bill in the Queen’s speech on 11 May last year, and introduced it in the House of Lords the following day. The extent of the bill is UK-wide, and the bill does not make separate provision for devolved and reserved professions. Therefore, the bill applies to all regulated professions, whether their regulation is reserved or devolved.

The bill defines a “regulated profession” as

“a profession that is regulated by law in the United Kingdom or a part of it”.

Three main categories of profession are captured under the bill. The first category consists of reserved professions such as architects, vets and medical practitioners. The second category is made up of those professions that are devolved, which, for Scotland, include solicitors and advocates, school teachers and social workers. Finally, there are those professions for which there is a mix of reserved and devolved responsibility. The regulation of the majority of healthcare professional groups is reserved. However, the regulation of new groups of healthcare professionals and those that have been regulated since the Scotland Act 1998 is devolved to the Scottish Parliament.

For example, the UK-wide Health and Care Professions Council is the regulatory body for the devolved professions of operating department practitioners and practitioner psychologists; the General Dental Council is the body for dental nurses, dental technicians, clinical dental technicians and orthodontic therapists. There is, clearly, a complicated landscape.

As well as providing continuity in the provision of an information centre, such as the one required by the European Union, the bill covers the implementation of the professional qualification aspects of trade agreements and would enable regulators that do not currently have the power to do so to enter into agreements with overseas counterparts. That latter power is already in place for key Scottish regulators. For example, the Institute of Chartered Accountants in Scotland has entered into a mutual recognition of professional qualifications agreement with its United States counterpart that is not replicated across the UK.

Those aspects of the bill are not contentious. However, the actions that are available to a “national authority” under the bill go much further, and I know that the other devolved Administrations have raised concerns about the scope of the bill.

The UK Government has sought legislative consent for the bill but, as it stands, the bill would confer concurrent powers on UK ministers, allowing them to act in devolved areas without a provision requiring the consent of the Scottish ministers. The bill, as introduced to the House of Lords, could, for example, allow the UK Government to require Scottish regulators to enter into international agreements, or to accept qualifications from other countries as being equivalent, without the agreement of the Scottish ministers and without any form of scrutiny by the Scottish Parliament.

Those concerns were reflected as the bill progressed through the Lords from the committee stage on 9 June to its third reading on 17 November. In that debate, responding for the Opposition, Baroness Blake said:

“There is a belief that there remains much work to do on the Bill in relation to devolved authorities. Just last week, the Minister promised to continue to explore amending the Bill to alleviate the justified concerns of the devolved Administrations.”—[Official Report, House of Lords, 17 November 2021; Vol 816, c 239.]

The UK Government introduced amendments to improve protection of the autonomy of regulators under the bill and a requirement to consult regulators before a “national authority”—which would be the UK or a devolved Government, depending on the circumstances—takes actions under the bill. The Scottish ministers would support those amendments as a step in the right direction, but they do not go far enough.

The underlying issue of the exercise of concurrent powers by UK Government ministers without consent was then raised in the Commons by Opposition members and has consistently been raised by Scottish Government officials and ministers in meetings with the UK Government. It is, as yet, unresolved.

Despite officials working to reach agreement with the UK Government, and despite various ministerial meetings emphasising our position, no agreement has been reached. Officials have analysed the issue in detail. On the assumption that future UK Governments would use the bill in a reasonable and sensible manner, we have not identified a single example where the Scottish ministers would wish to withhold consent. Given that, it is unclear to me and my officials why, for this bill, the UK Government would not respect the devolution settlement by including a consent provision in respect of devolved professions. Does the UK Government want to offer to lower professional standards to secure free trade agreements, is it a power grab, or does the current Government simply not respect the institutions of devolution?

Two Scottish Parliament committees have reported on the bill. The reports from the Delegated Powers and Law Reform Committee and the Economy and Fair Work Committee both concluded that the Scottish Parliament should have the opportunity to effectively scrutinise the exercise of all legislative powers within its competence, and that the use by the UK Government of powers in devolved areas should require the consent of the Scottish ministers. The Welsh Senedd has debated the bill and will also not be recommending consent to it as it stands.

When it has been respected by the UK Government, the Sewel convention has served devolution well. The Scottish ministers and officials have made clear that we would like to be able to recommend consent to the bill but that, as it stands, we cannot. If this Parliament does not give its consent to the bill, the Sewel convention requires UK ministers either to amend the bill or to exclude devolved matters from it. So far, there is no sign of either thing happening.

From Brexit, to Sewel, to its proposals to rip up the Human Rights Act 1998, the UK Government’s lack of respect for Scotland’s devolution settlement is clear and deeply troubling. In more than 20 years of devolution, the convention has been breached four times, always in relation to Brexit and with three of those breaches under the current Prime Minister. I hope that this bill will not be the fifth breach.

Mutual recognition of professional qualifications is important, which is reflected in its inclusion in our vision for trade. MRPQ allows our professionals to export professional services and gain valuable experience in other countries, and it allows professionals who qualified elsewhere to settle and contribute in Scotland. However, that should not lead to the Scottish ministers losing their responsibility to govern in devolved areas or to this Parliament losing its role in scrutinising those areas. The bill as it stands would mean just that if legislative consent was given.

I move that the Parliament backs the motion, refuses legislative consent to the bill as it stands and backs our request for a suitable amendment to be made to the bill that respects this Parliament’s role in scrutinising the regulation of devolved professions.

I move,

That the Parliament notes the supplementary legislative consent memorandum on the Professional Qualifications Bill lodged by the Scottish Government on 28 January 2022, and the reports of both the Economy and Fair Work Committee and the Delegated Powers and Law Reform Committee of 22 November 2021 and 23 September 2021, and calls on the UK Government to amend clause 16 (formerly 14) of the Professional Qualifications Bill to require UK Ministers to secure the consent of Scottish Ministers before acting in areas of devolved competence.

14:35  

I am pleased to contribute to the debate as convener of the Economy and Fair Work Committee. After considering the initial legislative consent memorandum on the Professional Qualifications Bill on 29 September 2021, we published our report on 22 November while recognising that the Scottish Government was working to secure amendments to address the shared concerns.

In that report, we shared the concerns that the Delegated Powers and Law Reform Committee had raised, agreeing that the Scottish Parliament should be able to scrutinise the exercise of legislative powers within devolved competence. Under the bill, there is no means for the Scottish Parliament to do that when regulations are laid by the UK Government that fall within devolved competence. That is proving to be a recurring issue.

In our report on the initial LCM, we also expressed concern that the combined effect of the United Kingdom Internal Market Act 2020 and the bill would mean that, in some cases, the Scottish Parliament would not even be made aware of regulatory changes in another part of the UK that would affect devolved areas.

In our scrutiny of the initial LCM, we appreciated the Health, Social Care and Sport Committee sharing with us concerns regarding the potential for unintended consequences around health and social care workforce planning should regulations be made by UK ministers that contradicted or interfered with the Scottish Government’s strategy. We share that concern and agree that a scrutiny role for the Scottish Parliament is vital, including the ability to track regulatory changes being made in relation to the health and social care workforce in Scotland. That is also relevant to other professions.

Following the publication of our report on the initial LCM, we anticipated a supplementary LCM from the Scottish Government, given the amendments at Westminster. Although the Scottish Government was aware in November 2021 that amendments had been agreed to that would require a supplementary LCM, a supplementary memorandum was not lodged until 27 January 2022. It is regrettable that that gave the committee only a very short time to consider the issues and formulate a position. Although today’s debate is important, the Scottish Government’s initiation of it further reduced the time that was available for the committee’s scrutiny, which is again regrettable. The truncated time that committees are being given to scrutinise LCMs is an issue that I intend to raise with the Conveners Group.

Despite the difficult timescales that have been involved, the committee published a report on the supplementary memorandum yesterday. The committee welcomes the amendments that were made to the bill that address issues of regulatory autonomy and regulator consultation, but substantive concerns remain. Five key recommendations from our report on the initial LCM have still not been addressed. They are as follows.

First, the bill should contain a requirement for the consent of the Scottish ministers to be obtained before regulations are made in areas of devolved competence. Secondly, there should be a scrutiny role for the Scottish Parliament in relation to health and social care workforce planning in order to avoid unintended consequences when the UK Government makes regulations that may impact, even inadvertently, on Scottish Government policy in devolved areas.

Thirdly, the Scottish Government should demonstrate how it will track and keep this Parliament informed about regulatory changes that are made in other parts of the UK that will affect areas of devolved competence. Fourthly, a process should be put in place to ensure early notification and opportunities for parliamentary scrutiny of intra-Government communications. Fifthly, the issues that the Delegated Powers and Law Reform Committee raised in relation to the appropriateness of delegation of the powers in clauses 1 and 3 should be pursued.

I recognise that the UK Government says that it does not intend to make regulations in areas of devolved competence without the agreement of the relevant devolved Administrations. However, the committee shares the Scottish Government’s concern that that commitment is not in the bill. That results in there being no mechanism to enable the Scottish Parliament to scrutinise UK ministers’ regulations under the bill that are within the Scottish Parliament’s competence. A consent requirement would give this Parliament its appropriate place in the process.

The Economy and Fair Work Committee’s view is that the legislation should require the UK Government to obtain the consent of the devolved Administrations in areas of devolved competence. If that is truly the UK Government’s intention, there is surely nothing to prevent the inclusion of a consent mechanism.

14:39  

The UK Government’s Professional Qualifications Bill aims to create a new legislative framework for recognising professional qualifications that are gained outside the UK. That framework will replace existing EU-derived law in the area. Given that more than 200 professions are regulated by law in the UK, that is a significant undertaking. Feedback from regulators such as the Law Society of Scotland suggests that the law has been improved during its passage in the UK Parliament, and that constructive engagement has taken place with the Department for Business, Energy and Industrial Strategy during the amending stage, when proposed changes were rigorously debated.

The Scottish Government’s supplementary legislative consent memorandum rightly emphasises that many aspects of the bill are not contentious; during the bill’s second reading, the SNP chief whip in Westminster stated that

“the Scottish National Party is not against the principles of the bill”—[Official Report, House of Commons, 15 December 2021; Vol 705, c 112.]

It is clearly not the policy intention of the bill that the Scottish Government opposes, but the process through which its provisions are implemented, and the reason why the legislation is required in the first place. I will address those points in turn.

On the issue of process, it is important to acknowledge at the outset that the Sewel convention was engaged and that the UK Government has been negotiating extensively with the devolved Administrations to find consensus on areas of divergence. That point was specifically made by Ivan McKee in his evidence to the Economy and Fair Work Committee on 29 September 2021, when he highlighted that there is

“on-going engagement at official level”

and that the minister had been in contact with

“Gerry Grimstone, the relevant UK Government minister.”—[Official Report, Economy and Fair Work Committee, 29 September 2021; c 31.]

That point was also made in Ivan McKee’s letter of 23 November to the committee, which referred to “continuing discussion with BEIS”.

The main point of contention for the Scottish Government is outlined in paragraph 20 of the supplementary legislative consent memorandum—namely, concerns about exercising of concurrent powers and the definition of “appropriate national authority”, and issues related to consent. On concurrent powers, the approach that has been taken by the UK Government is to ensure that professions that fall within devolved legislative competence, but are regulated on a UK-wide basis, can be dealt with effectively and appropriately under the bill by the relevant and appropriate national authority.

To address the concerns of the Scottish and Welsh Governments, the UK Government suggested putting a duty to consult in the bill. That duty would require the relevant secretary of state or the Lord Chancellor to consult the devolved Administrations before making, under the legislation, regulations that fall within devolved competence, and to publish a report on the consultation. Therefore, there has been significant movement by the UK Government, which would preserve the balance of the devolution settlement while maintaining a coherent approach across the UK.

Will the member take an intervention?

No.

The proposal would also mitigate some of the concerns that have been raised by the Economy and Fair Work Committee and the Delegated Powers and Law Reform Committee. Given the SNP’s concern that the bill impinges on devolved competence, it is worth pointing out that the Scottish Government was content with operation of the former system for recognition of qualifications under EU law, in which the UK made decisions, as the member state.

I now turn to the reason why the legislation is required—the UK’s withdrawal from the EU. The SNP seems to agree with the principles of the bill, yet it expresses opposition, at least in part, because of Brexit. MSPs have made the argument on that many times in the chamber, but it bears repeating that the UK, which Scotland voted to remain part of in 2014, voted to leave the EU two years later. That outcome was a source of sadness and regret for many people, but they have, nevertheless, accepted it as a democratic process.

I will make two final points, the first of which is technical. The Scottish Government’s motion refers to the Economy and Fair Work Committee’s report that was published on 22 November 2021. Paragraph 58 of that report concluded:

“the Committee is not currently in a position to take a view on this LCM”.

The minister talked about lack of respect and said that scrutiny is important. I am glad that he said that, because the committee’s report on the supplementary legislative consent memorandum, which was published yesterday, raised concerns about the amount of time the Scottish Government took to lodge the supplementary LCM, which was more than two months overdue. Along with the Scottish Government’s timetabling of today’s debate, the committee felt that those factors limited its ability to conduct detailed scrutiny. The minister might look at me.

We believe that the bill will provide stability for qualifications and prevent divergence in professional qualifications regulations in the UK. We note the extensive engagement to date between the UK Government and the Scottish Government regarding the bill’s provisions, and we note that the Scottish Government is supportive of the general principles of the bill. Overall, we are in favour of consenting to the bill and will vote against the motion at decision time.

14:46  

I am very grateful to speak in the debate.

We find ourselves in an unusual position following our departure from the European Union, in which, over decades, regulations and rules were driven by professions across Europe to ensure that recognition of the skills, competencies, honesty and otherwise of various professions was reflected across the European Union. The purpose of that, of course, was that people could ply their trade where they chose to be. That also came at a time when recognition of devolved professions was coming to the fore. With the devolution settlement in Scotland, and even before that, we had a distinct and separate group of professions.

I want to take the short time that I have to discuss two of those professions: the legal profession and the education and schools profession, which is very close to my heart. I had the pleasure of serving on the General Teaching Council for Scotland as a council member a while ago. It is fascinating that, with the bill making its way through the Parliament at Westminster, those two groups came to advocate for their own identity and their own professional competences.

It was interesting to listen to Tess White; I am slightly sad that she was unable to take my intervention. She talked about the assurances that the Westminster Tory Government has given to the devolved nations. It does not seem to be a large step from saying, “We will talk to you, we promise” to putting that in the bill so that the people of the devolved nations can say, “There’s the respect that we are due.” In turn, the devolved Governments would consult the professions that, within the Governments’ ambit, regulate themselves. I am thinking of the Law Society of Scotland and the General Teaching Council for Scotland.

I will turn to some specific issues, in the short time that I have left. On teaching, a consultation was put out by the Government to which the General Teaching Council for Scotland responded. The GTCS has responded to a number of such items in seeking to protect access to the profession for people who are properly qualified, because we in this nation are very proud to have a graduate profession, or graduate-equivalent profession, that empowers people to teach our youngsters. In its own consultation on the matter, The GTCS stated:

“GTC Scotland has actively participated in the discussion of new legislation, including the Internal Market Bill ... and the Professional Qualifications Bill”,

which we are dealing with today. It said:

“GTC Scotland is strongly opposed to any proposal which could erode or dilute the integrity of the Register of Teachers through changes to qualification requirements or similar.”

That is where the fear about the bill lies: a fear that a change that is made in the south without proper and full consultation will affect teachers here. It is for this Parliament and our Government here to represent our independent bodies, such as the GTCS, and to defend their position.

Mention was made of the Law Society of Scotland’s support for the bill. It is right to say that it supports the bill’s provisions in the main, but it drew specific attention to clause 7, which provides for a centre from which information can be sought by people from elsewhere in Europe who want to practice in the United Kingdom, or professionals from the United Kingdom who want to practice abroad. The reason why the Law Society of Scotland took issue with that was not that it is not a good idea, but that it is vitally important that there is proper consultation of the various professional bodies across the United Kingdom so that the correct information is available. I have some concerns that are perhaps on a technical level, about the cost and finance implications of that centre, but they are for another day.

To come to the heart of the matter, I note that we have heard members discuss whether the matter is a constitutional argument about whether this Government and this Parliament should or should not be consulted. It is more fundamental than that. The bill had to be rushed through because of a choice that was made in a referendum. In pursuing its vehicle to implement that choice, the Conservative Government down south was confronted with the problem of how professionals will ply their trades across the European Union. It was an opportunity for Westminster to hold out its hands, listen and discuss, and then to reflect those discussions in the bill, not in side-by-side letters and promises. It is right that in Wales and Scotland there is dismay and disappointment at the approach that has been taken.

I support the Government’s motion and, honestly, I feel that the Westminster Government could have done a lot better.

I call the minister to wind up the debate.

14:52  

I thank members for taking part in the debate, short though it has been. As Martin Whitfield clearly outlined, the bill is on a very important issue that impacts on many professions in Scotland. I welcome the support that has been shown by him and the Scottish Parliament’s committees for the Government’s position on this important issue.

As I said in my opening speech, mutual recognition of professional qualifications benefits skilled Scottish workers who are looking to work abroad, and helps us to attract the skilled labour that our businesses and public services need. That is something that we want to encourage, in order to enable Scotland to continue to grow and prosper.

It is true that it can sometimes be appropriate for UK ministers to act on Scotland’s behalf, as we have seen on numerous occasions over the past couple of years, but that should always happen with the consent of Scottish ministers, and this Parliament must have the opportunity to scrutinise actions that are taken using powers in devolved areas. That underpins devolution; indeed, consent has been given to Brexit-related UK statutory instruments in relation to MRPQ, where they touch on devolved issues.

I hope that the Parliament will agree with the recommendation not to give consent to the bill as it currently stands. I fear that if the bill were to be given consent in its current form, that would set a dangerous precedent for future bills that include concurrent powers, through which the UK Government would seek to act in devolved areas without the consent of Scottish ministers. That is not something that we can or should agree to. I know that that view is shared by colleagues and ministers in Wales and Northern Ireland.

Members have heard today that we will do everything that we can do to protect devolution and Scotland’s interests. We will continue to engage and work with the UK Government to try to convince it to include an appropriate consent mechanism in what would then be an otherwise uncontentious bill.

It is very interesting to note the complete disrespect for devolution that is emanating from Conservative members. That informs our opinion of their attitude to this Parliament, to devolution in its entirety and, indeed, to Scotland—something that the voters of Scotland are, increasingly, coming to recognise.

I ask Parliament to back the motion, to refuse legislative consent to the bill as it stands and to back our request that the UK Government table a suitable amendment to the bill that respects Scottish ministers’ and this Parliament’s responsibilities in respect of devolved professions.